By: Bivins S.B. No. 1874
Line and page numbers may not match official copy.
Bill not drafted by TLC or Senate E&E.
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the issuance of emergency and temporary orders and
1-2 permits by the Texas Natural Resource Conservation Commission.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Chapter 5, Water Code, is amended by adding
1-5 Subchapter K to read as follows:
1-6 SUBCHAPTER K. EMERGENCY AND TEMPORARY ORDERS
1-7 Sec. 5.401. EMERGENCY AND TEMPORARY ORDERS AND PERMITS;
1-8 TEMPORARY SUSPENSION OR AMENDMENT OF PERMIT CONDITIONS. (a) The
1-9 commission may issue temporary or emergency mandatory, permissive,
1-10 or prohibitory orders, temporarily issue permits by temporary or
1-11 emergency order, or temporarily suspend or amend permit conditions
1-12 by temporary or emergency order for the purposes and in the manner
1-13 provided by this subchapter.
1-14 (b) The commission may issue an emergency order under this
1-15 subchapter after providing the notice and opportunity for hearing
1-16 that the commission considers practicable under the circumstances
1-17 or without notice or hearing. Except as provided by Section 5.403,
1-18 if the commission requires notice and hearing before issuing the
1-19 order, notice shall be given not later than the 10th day before the
1-20 date set for the hearing. The commission shall give notice not
1-21 later than the 20th day before the date set for a hearing on a
2-1 temporary order.
2-2 (c) The commission may by order or rule delegate to the
2-3 executive director the authority to receive applications and issue
2-4 emergency orders under this subchapter and to authorize a
2-5 representative or representatives in writing to act on the
2-6 executive director's behalf under this subchapter.
2-7 (d) Any person other than the executive director or the
2-8 executive director's representative who desires an emergency or
2-9 temporary order under this subchapter must submit a sworn written
2-10 application to the commission. The application must contain:
2-11 (1) a description of the condition of emergency or
2-12 other condition justifying the issuance of the order;
2-13 (2) a statement setting forth facts which support the
2-14 findings required under this subchapter;
2-15 (3) an estimate of the dates on which the proposed
2-16 order should begin and end;
2-17 (4) a description of the action sought and the
2-18 activity proposed to be allowed, mandated, or prohibited; and
2-19 (5) any other statements or information required by
2-20 this subchapter or by the commission.
2-21 (e) If the commission or the executive director or the
2-22 executive director's representative issues an emergency order under
2-23 this subchapter without a hearing, the order shall set a time and
2-24 place for a hearing to be held before the commission or its
2-25 designee as soon as practicable after the order is issued.
3-1 (f) At or following the hearing required under Subsection
3-2 (e), the commission shall affirm, modify, or set aside the
3-3 emergency order. A hearing to affirm, modify, or set aside an
3-4 emergency order shall be conducted in accordance with Chapter 2001,
3-5 Government Code, and commission rules. Commission rules concerning
3-6 hearings to affirm, modify, or set aside emergency orders must
3-7 include provisions for presentation of evidence by the applicant
3-8 under oath, presentation of rebuttal evidence, and
3-9 cross-examination of witnesses.
3-10 (g) An emergency or a temporary order issued under this
3-11 subchapter must be limited to a reasonable time specified by the
3-12 order. The term of an emergency order may not exceed 120 days. An
3-13 emergency order may be renewed once for not longer than 60 days.
3-14 (h) Notice of the issuance of an emergency order shall be
3-15 provided in accordance with commission rules.
3-16 (I) Chapter 2001, Government Code, does not apply to the
3-17 issuance of an emergency order under this subchapter without a
3-18 hearing.
3-19 (j) Sections of the statutes under which the commission acts
3-20 and which require notice of hearing or which set procedures for the
3-21 issuance of permits do not apply to a hearing on an emergency order
3-22 issued under this subchapter unless they specifically require
3-23 notice for emergency orders, but such general notice of the hearing
3-24 shall be given as in the judgment of the commission is practicable
3-25 under the circumstances.
4-1 (k) An emergency or temporary order issued under this
4-2 subchapter does not vest in the permittee or grantee any rights and
4-3 shall expire and be canceled in accordance with its terms.
4-4 (l) The commission may prescribe rules and adopt fees which
4-5 are necessary to carry out the provisions of this subchapter.
4-6 Sec. 5.402. EMERGENCY ORDERS, PERMITS FOR DIVERSION AND USE
4-7 OF WATER, AND AMENDMENTS TO WATER RIGHTS; TEMPORARY TRANSFERS OF
4-8 USE OF WATER RIGHTS. (a) Except as provided by Section 5.403 of
4-9 this code, the commission may by emergency order issue a permit for
4-10 the diversion and use of water, an order, or an amendment to an
4-11 existing water right if it finds that emergency conditions exist
4-12 which present an imminent threat to the public health, safety, and
4-13 welfare or the environment and which override the necessity to
4-14 comply with established statutory procedures and there are no
4-15 feasible practicable alternatives to the emergency authorization.
4-16 (b) If an imminent threat to the public health, safety, and
4-17 welfare or the environment exists which requires emergency action
4-18 before the commission can take action as provided by Subsection (a)
4-19 of this section and there are no feasible alternatives, the
4-20 executive director may grant an emergency order. If the executive
4-21 director issues an emergency order under this subsection, the
4-22 commission shall hold a hearing as provided for in Section 5.401 of
4-23 this Subchapter as soon as practicable but in no event later than
4-24 10 days after issuance of the authorization to affirm, modify, or
4-25 set aside the order. The requirements of Section 5.401, Subsection
5-1 (d) of this subchapter shall be satisfied by the applicant on or
5-2 before such hearing date.
5-3 (c) The requirements of Section 11.132 of this code relating
5-4 to the time for notice, newspaper notice, and method of giving a
5-5 person notice do not apply to a hearing held on an application for
5-6 an emergency order under this section, but such general notice of
5-7 the hearing shall be given as the commission considers practicable
5-8 under the circumstances.
5-9 (d) The commission may grant an emergency order under this
5-10 section for the temporary transfer and use of all or part of a
5-11 surface water right for other than domestic or municipal use to a
5-12 retail or wholesale water supplier for domestic or municipal use.
5-13 In addition to the requirements contained in Section 5.401,
5-14 Subsection (b) of this subchapter, the commission may direct that
5-15 the applicant will timely pay the amounts for which the applicant
5-16 may be potentially liable under this subsection and will fully
5-17 indemnify and hold harmless the state, the executive director, and
5-18 the commission from any and all liability for the order sought.
5-19 The commission may order bond or other surety in a form acceptable
5-20 to the commission as a condition for such emergency order.
5-21 (e) The person granted an emergency order under Subsection
5-22 (d) of this section is liable to the owner from whom the use is
5-23 transferred for the fair market value of the water transferred as
5-24 well as for any damages proximately caused by the transfer of use.
5-25 If, within 60 days of the termination of the order, the parties do
6-1 not agree on the amount due, or if full payment is not made, either
6-2 party may file a complaint with the commission to determine the
6-3 amount due. The commission shall adopt rules establishing a
6-4 dispute resolution procedure for a complaint filed under this
6-5 subsection. After exhausting all administrative remedies under this
6-6 subsection, an aggrieved party may file suit to recover or
6-7 determine the amount due in a district court in the county where
6-8 the diversion point or points of the surface water right which use
6-9 is being transferred is located. The prevailing party in a suit
6-10 filed under this subsection is entitled to recover court costs and
6-11 reasonable attorney's fees.
6-12 Sec. 5.403. EMERGENCY SUSPENSION OF PERMIT CONDITIONS
6-13 RELATING TO BENEFICIAL INFLOWS TO AFFECTED BAYS AND ESTUARIES AND
6-14 INSTREAM USES. (a) The commission may by emergency or temporary
6-15 order suspend permit conditions relating to beneficial inflows to
6-16 affected bays and estuaries and instream uses when the commission
6-17 finds that an emergency exists that cannot practicably be resolved
6-18 in other ways.
6-19 (b) Before the commission suspends a permit condition under
6-20 this section, written notice of the proposed suspension must be
6-21 given to the Parks and Wildlife Department. The commission shall
6-22 give the Parks and Wildlife Department an opportunity to submit
6-23 comments on the proposed suspension for a period of 72 hours from
6-24 receipt of such notice and shall consider those comments before
6-25 issuing an order imposing the suspension.
7-1 (c) The commission may suspend permit conditions under this
7-2 section without notice to any other interested party other than the
7-3 Parks and Wildlife Department as provided by Subsection (b).
7-4 However, all affected persons shall be notified immediately by
7-5 publication.
7-6 Sec. 5.404. EMERGENCY WORKS SAFETY ORDERS. The commission
7-7 may issue an emergency order, either mandatory or prohibitory in
7-8 nature, directing the owner of a dam, levee, or other water-storage
7-9 or flood-control work to repair, modify, maintain, dewater, or
7-10 remove a work if the commission finds that the existing condition
7-11 of the work is causing or will cause extensive or severe property
7-12 damage or economic loss to others or is posing an immediate and
7-13 serious threat to human life or health and that other procedures
7-14 available to the commission to remedy or prevent the occurrence
7-15 will result in unreasonable delay.
7-16 Sec. 5.405. EMERGENCY ORDERS TO COMPEL WATER OR SEWER
7-17 SERVICE. The commission may issue an emergency order to:
7-18 (1) compel a water or sewer service provider that has
7-19 obtained or is required to obtain a certificate of public
7-20 convenience and necessity to provide continuous and adequate water
7-21 or sewer service, or both, if it finds that the discontinuance of
7-22 the service is imminent or has occurred because of the service
7-23 provider's actions or failure to act;
7-24 (2) compel a retail public utility to provide an
7-25 emergency interconnection with a neighboring retail public utility
8-1 for the provision of temporary water or sewer service, or both, if
8-2 it finds that service discontinuance or serious impairment in
8-3 service is imminent or has occurred; and
8-4 (3) establish reasonable compensation for temporary
8-5 service required under Subdivision (2) and allow the retail public
8-6 utility receiving the service to make a temporary adjustment to its
8-7 rate structure to ensure proper payment.
8-8 Sec. 5.406. EMERGENCY ORDERS FOR OPERATION OF UTILITY THAT
8-9 DISCONTINUES OPERATION OR IS REFERRED FOR APPOINTMENT OF RECEIVER.
8-10 The commission may issue an emergency order appointing a willing
8-11 person to temporarily manage and operate a utility under Section
8-12 13.4132, and notice of the action is adequate if the notice is
8-13 mailed or hand delivered to the last known address of the utility's
8-14 headquarters.
8-15 Sec. 5.407. EMERGENCY ORDERS FOR RATE INCREASES IN CERTAIN
8-16 SITUATIONS. (a) Notwithstanding the requirements of Section
8-17 13.187, the commission may authorize an emergency rate increase for
8-18 a utility for which a person has been appointed under Section 5.406
8-19 or 13.4132 or for which a receiver has been appointed under Section
8-20 13.412 if the increase is necessary to ensure the provision of
8-21 continuous and adequate services to the utility's customers.
8-22 (b) A utility that receives an emergency rate increase under
8-23 this section shall provide to each ratepayer notice of the increase
8-24 as soon as possible, but not later than the first utility bill
8-25 issued at the new rate.
9-1 (c) Notwithstanding the provisions of Section 5.401(g), an
9-2 order may be issued under this section for a term of up to 15
9-3 months. The commission shall schedule a hearing to establish a
9-4 final rate within 15 months after the date on which an emergency
9-5 rate increase takes effect. The additional revenues collected
9-6 under an emergency rate increase are subject to refund if the
9-7 commission finds that the rate increase was larger than necessary
9-8 to ensure continuous and adequate service.
9-9 Sec. 5.408. TEMPORARY AND EMERGENCY ORDERS AND
9-10 AUTHORIZATIONS TO DISCHARGE UNTREATED OR PARTIALLY TREATED
9-11 WASTEWATER. (a) The commission may issue an emergency or a
9-12 temporary order relating to the discharge of waste or pollutants
9-13 into or adjacent to water in the state when this is necessary to
9-14 enable action to be taken more expeditiously than is otherwise
9-15 provided by Chapter 26 to effectuate the policy and purposes of
9-16 that chapter, if it finds that:
9-17 (1) the discharge is unavoidable to prevent loss of
9-18 life, serious injury, severe property damage, or severe economic
9-19 loss or to make necessary and unforeseen repairs to a facility;
9-20 (2) there are no feasible alternatives to the proposed
9-21 discharge;
9-22 (3) the discharge will not cause significant hazard to
9-23 human life and health, unreasonable damage to the property of
9-24 persons other than the applicant, or unreasonable economic loss to
9-25 persons other than the applicant; and
10-1 (4) the discharge will not present a significant
10-2 hazard to the uses that will be made of the receiving water after
10-3 the discharge.
10-4 (b) A person desiring a temporary or an emergency order
10-5 under this section must submit a sworn written application to the
10-6 commission under Section 5.401(d) that must also contain the
10-7 following:
10-8 (1) a statement of the volume and quality of the
10-9 proposed discharge;
10-10 (2) an explanation of the measures proposed to
10-11 minimize the volume and duration of the discharge; and
10-12 (3) an explanation of the measures proposed to
10-13 maximize the waste treatment efficiency of units not taken out of
10-14 service or facilities provided for interim use.
10-15 Sec. 5.409. EMERGENCY ORDERS CONCERNING UNDERGROUND OR
10-16 ABOVEGROUND STORAGE TANKS. (a) The commission may issue an
10-17 emergency order to the owner or operator of an underground or
10-18 aboveground storage tank regulated under Chapter 26 prohibiting the
10-19 owner from allowing or continuing a release or threatened release
10-20 and requiring the owner to take the actions necessary to eliminate
10-21 the release or threatened release, if it finds that:
10-22 (1) there is an actual or threatened release of a
10-23 regulated substance; and
10-24 (2) more expeditious action than is otherwise provided
10-25 under Chapter 26 is necessary to protect the public health or
11-1 safety or the environment from harm.
11-2 (b) An emergency order issued under this section shall be:
11-3 (1) mailed by certified mail, return receipt
11-4 requested, to each person identified in the order;
11-5 (2) hand delivered to each person identified in the
11-6 order; or
11-7 (3) on failure of service by certified mail or hand
11-8 delivery, served by publication one time in the Texas Register and
11-9 one time in a newspaper with general circulation in each county in
11-10 which any of the persons identified in the order has a last known
11-11 address.
11-12 Sec. 5.410. EMERGENCY ADMINISTRATIVE ORDERS TO PERSONS
11-13 RESPONSIBLE FOR SOLID WASTE. The commission or the executive
11-14 director may issue emergency administrative orders under Sections
11-15 361.272 and 361.274, Health and Safety Code, in the manner provided
11-16 by this subchapter.
11-17 Sec. 5.411. EMERGENCY ORDERS CONCERNING ACTIVITIES OF SOLID
11-18 WASTE MANAGEMENT. The commission may issue an emergency order
11-19 concerning an activity of solid waste management under its
11-20 jurisdiction, even if that activity is not covered by a permit, if
11-21 it finds that an emergency requiring immediate action to protect
11-22 the public health and safety exists.
11-23 Sec. 5.412. EMERGENCY ORDERS CONCERNING ON-SITE SEWAGE
11-24 DISPOSAL SYSTEMS. (a) The commission may issue an emergency order
11-25 suspending the registration of the installer of an on-site sewage
12-1 disposal system, regulating an on-site sewage disposal system, or
12-2 both, if it finds that an emergency exists and that the public
12-3 health and safety is endangered because of the operation of an
12-4 on-site sewage disposal system that does not comply with Chapter
12-5 366, Health & Safety Code, or a rule adopted under that chapter.
12-6 (b) If the emergency order issued under this section is
12-7 adopted without notice or hearing, the order shall set a time and
12-8 place for a hearing to affirm, modify, or set aside the order not
12-9 later than the 30th day after the date on which the emergency order
12-10 is issued.
12-11 Sec. 5.413. ORDERS ISSUED UNDER AIR EMERGENCIES. (a) If
12-12 the commission finds that a generalized condition of air pollution
12-13 exists that creates an emergency requiring immediate action to
12-14 protect human health or safety, it may, with the concurrence of the
12-15 governor, issue an emergency order requiring any person causing or
12-16 contributing to the air pollution to immediately reduce or
12-17 discontinue the emission of air contaminants.
12-18 (b) If the commission finds that emissions from one or more
12-19 sources are causing imminent danger to human health or safety but
12-20 that there is not a generalized condition of air pollution under
12-21 Subsection (a), it may issue an emergency order requiring the
12-22 persons responsible for the emissions to immediately reduce or
12-23 discontinue the emissions.
12-24 (c) Notwithstanding Section 5.401, the commission shall
12-25 affirm, modify, or set aside an order issued under this section not
13-1 later than 24 hours after the hearing begins and without
13-2 adjournment of the hearing.
13-3 (d) This section does not limit any power that the governor
13-4 or another officer may have to declare an emergency and to act on
13-5 the basis of that declaration if the power is conferred by law or
13-6 inheres in the office.
13-7 Sec. 5.414. ISSUANCE OF EMERGENCY ORDER BECAUSE OF
13-8 CATASTROPHE. (a) The commission may issue an emergency order
13-9 authorizing immediate action for the addition, replacement, or
13-10 repair of facilities or control equipment necessitated by a
13-11 catastrophe occurring in this state and the emission of air
13-12 contaminants during the addition, replacement, or repair of those
13-13 facilities, if the actions and emissions are otherwise precluded
13-14 under Chapter 382, Health and Safety Code, and if the commission
13-15 finds that:
13-16 (1) the construction and emissions are essential to
13-17 prevent loss of life, serious injury, severe property damage, or
13-18 severe economic loss not attributable to the applicant's actions
13-19 and are necessary for the addition, replacement, or repair of a
13-20 facility or control equipment necessitated by the catastrophe;
13-21 (2) there are no practicable alternatives to the
13-22 proposed construction and emissions; and
13-23 (3) the emissions will not cause or contribute to air
13-24 pollution.
13-25 (b) An order issued under this section must:
14-1 (1) authorize action only on:
14-2 (A) property on which a catastrophe has
14-3 occurred; or
14-4 (B) other property that is owned by the owner or
14-5 operator of the damaged facility and that produces the same
14-6 intermediates, products, or by-products; and
14-7 (2) contain a schedule for submission of a complete
14-8 application for a permit under Section 382.0518, Health and Safety
14-9 Code.
14-10 (c) The person applying for an emergency order must
14-11 demonstrate that there will be no more than a de minimis increase
14-12 in the predicted concentration of air contaminants at or beyond the
14-13 property line of the other property on which action is authorized
14-14 under Subsection (b)(1)(B). The commission shall review and act on
14-15 an application submitted as provided by Subsection (b)(2) without
14-16 regard to construction activity under an order under this section.
14-17 (d) An applicant desiring an emergency order under this
14-18 section must submit a sworn written application to the commission
14-19 under Section 5.401(d) that must also contain the following:
14-20 (1) a description of the catastrophe;
14-21 (2) a statement that:
14-22 (A) the construction and emissions are essential
14-23 to prevent loss of life, serious injury, severe property damage, or
14-24 severe economic loss not attributable to the applicant's actions
14-25 and are necessary for the addition, replacement, or repair of a
15-1 facility or control equipment necessitated by the catastrophe;
15-2 (B) there are no practicable alternatives to the
15-3 proposed construction and emissions; and
15-4 (C) the emissions will not cause or contribute
15-5 to air pollution;
15-6 (3) an estimate of the dates on which the proposed
15-7 construction or emissions, or both, will begin and end;
15-8 (4) an estimate of the date on which the facility will
15-9 begin operation; and
15-10 (5) a description of the quantity and type of air
15-11 contaminants proposed to be emitted.
15-12 (e) In this section, "catastrophe" means an unforeseen
15-13 event, including an act of God, an act of war, severe weather,
15-14 explosions, fire, or similar occurrences beyond the reasonable
15-15 control of the operator, that makes a facility or its related
15-16 appurtenances inoperable.
15-17 Sec. 5.415. EMERGENCY ORDERS UNDER SECTION 401.056, HEALTH
15-18 AND SAFETY CODE. The commission may issue an emergency order under
15-19 Section 401.056, Health and Safety Code, in the manner provided by
15-20 this subchapter.
15-21 Sec. 5.416. EMERGENCY ORDERS FOR CORRECTIVE ACTION AND
15-22 MEASURES. (a) The commission may issue an emergency order under
15-23 Section 401.270, Health and Safety Code, to a person responsible
15-24 for an activity, including a past activity, concerning the recovery
15-25 or processing of source material or the disposal of by-product
16-1 material requiring any action, including a corrective measure that
16-2 is necessary to correct or remove the threat, if it finds that
16-3 by-product material or the operation by which that by-product
16-4 material is derived threatens the public health and safety and the
16-5 environment, regardless of whether the activity was lawful at the
16-6 time.
16-7 (b) An emergency order may be issued under this section to:
16-8 (1) restrain the person from allowing or continuing
16-9 the release; and
16-10 (2) require the person to take any action necessary to
16-11 provide and implement an environmentally sound remedial action plan
16-12 designed to eliminate the release or threatened release.
16-13 (c) An emergency order issued under this section shall be:
16-14 (1) mailed by certified mail, return receipt
16-15 requested, to each person identified in the order;
16-16 (2) hand delivered to each person identified in the
16-17 order; or
16-18 (3) on failure of service by certified mail or hand
16-19 delivery, served by publication one time in the Texas Register and
16-20 one time in a newspaper with general circulation in each county in
16-21 which any of the persons identified in the order has a last known
16-22 address.
16-23 (d) If the order issued under this section is adopted
16-24 without notice or hearing, the order shall set a time, at least 10
16-25 but not more than 30 days following the date of issuance of the
17-1 order, for a hearing to be held to affirm, modify, or set aside the
17-2 order. All provisions of the order shall remain in effect during
17-3 the pendency of the hearing unless otherwise altered by the
17-4 commission.
17-5 SECTION 2. Section 12.052, Water Code, is amended to read as
17-6 follows:
17-7 Sec. 12.052. DAM SAFETY. (a) The commission shall make and
17-8 enforce rules and orders and shall perform all other acts necessary
17-9 to provide for the safe construction, maintenance, repair, and
17-10 removal of dams located in this state.
17-11 (b) Rules and orders made by the commission shall be made
17-12 after proper notice and hearing as provided in the rules of the
17-13 commission.
17-14 (c) If the owner of a dam that is required to be
17-15 constructed, reconstructed, repaired, or removed in order to comply
17-16 with the rules and orders promulgated under Subsection (a) of this
17-17 section wilfully fails or refuses to comply within the 30-day
17-18 period following the date of the commission's order to do so or if
17-19 a person wilfully fails to comply with any rule or other order
17-20 issued by the commission under this section within the 30-day
17-21 period following the effective date of the order, he is liable to a
17-22 penalty of not more than $1,000 a day for each day he continues to
17-23 violate this section. The state may recover the penalty by suit
17-24 brought for that purpose in the district court of Travis County.
17-25 (d) The commission may issue an emergency order under
18-1 Subchapter K, Chapter 5 of this code [If the commission determines
18-2 that the existing condition of the dam is creating or will cause
18-3 extensive or severe property damage or economic loss to others or
18-4 is posing an immediate and serious threat to human life or health
18-5 and that other procedures available to the commission to remedy or
18-6 prevent the occurrence of the situation will result in unreasonable
18-7 delay, the commission may issue an emergency order, either
18-8 mandatory or prohibitory in nature, directing the owner of a dam to
18-9 repair, modify, maintain, dewater, or remove the dam which the
18-10 commission determines is unsafe. The emergency order may be issued
18-11 without notice to the dam owner or with notice the commission
18-12 considers practicable under the circumstances. The notice does not
18-13 have to comply with Chapter 2001, Government Code].
18-14 (e) [If the commission issues an emergency order under
18-15 authority of this section without notice to the dam owner, the
18-16 commission shall fix a time and place for a hearing which shall be
18-17 held as soon as practicable to affirm, modify, or set aside the
18-18 emergency order. The notice does not have to comply with Chapter
18-19 2001, Government Code. If the nature of the commission's action
18-20 requires further proceedings, those proceedings shall be conducted
18-21 as appropriate under the Administrative Procedure and Texas
18-22 Register Act, as amended (Article 6252-13a, Vernon's Texas Civil
18-23 Statutes).]
18-24 [(f)] Nothing in this section or in rules or orders made by
18-25 the commission shall be construed to relieve an owner or operator
19-1 of a dam or reservoir of the legal duties, obligations, or
19-2 liabilities incident to ownership or operation.
19-3 SECTION 3. Subsection (d), Section 13.041, Water Code, is
19-4 amended to read as follows:
19-5 (d) The commission may issue an emergency order under
19-6 Subchapter K, Chapter 5 of this code [orders, with or without a
19-7 hearing:]
19-8 [(1) to compel a water or sewer service provider that
19-9 has obtained or is required to obtain a certificate of public
19-10 convenience and necessity to provide continuous and adequate water
19-11 service, sewer service, or both, if the discontinuance of the
19-12 service is imminent or has occurred because of the service
19-13 provider's actions or failure to act; and]
19-14 [(2) to compel a retail public utility to provide an
19-15 emergency interconnection with a neighboring retail public utility
19-16 for the provision of temporary water or sewer service, or both, for
19-17 not more than 90 days if service discontinuance or serious
19-18 impairment in service is imminent or has occurred].
19-19 SECTION 4. Section 13.253, Water Code, is amended to read as
19-20 follows:
19-21 Sec. 13.253. IMPROVEMENTS IN SERVICE; INTERCONNECTING
19-22 SERVICE. After notice and hearing, the commission may:
19-23 (1) order any retail public utility that is required
19-24 by law to possess a certificate of public convenience and necessity
19-25 to provide specified improvements in its service in a defined area
20-1 if service in that area is inadequate or is substantially inferior
20-2 to service in a comparable area and it is reasonable to require the
20-3 retail public utility to provide the improved service;
20-4 (2) order two or more public utilities or water supply
20-5 or sewer service corporations to establish specified facilities for
20-6 the interconnecting service; or
20-7 (3) issue an emergency order[, with or without a
20-8 hearing,] under Subchapter K, Chapter 5 [Section 13.041] of this
20-9 code.
20-10 SECTION 5. Subsection (b), Section 13.4132, Water Code, is
20-11 amended to read as follows:
20-12 (b) The commission may issue an emergency order appointing
20-13 [appoint] a person and authorizing an emergency rate increase under
20-14 Subchapter K, Chapter 5 of this code [section by emergency order,
20-15 and notice of the action is adequate if the notice is mailed or
20-16 hand-delivered to the last known address of the utility's
20-17 headquarters].
20-18 SECTION 6. Section 16.236, Water Code, is amended to read as
20-19 follows:
20-20 Sec. 16.236. CONSTRUCTION OF LEVEE WITHOUT APPROVAL OF
20-21 PLANS; LEVEE SAFETY. (a) The No person may construct, attempt to
20-22 construct, cause to be constructed, maintain, or cause to be
20-23 maintained any levee or such other improvement on, along, or near
20-24 any stream of this state that is subject to floods, freshets, or
20-25 overflows so as to control, regulate, or otherwise change the
21-1 floodwater of the stream without first obtaining approval of the
21-2 commission.
21-3 (b) The commission shall make and enforce rules and orders
21-4 and shall perform all other acts necessary to provide for the safe
21-5 construction, maintenance, repair, and removal of levees located in
21-6 this state.
21-7 (c) If the owner of a levee that is required to be
21-8 constructed, reconstructed, repaired, or removed in order to comply
21-9 with the rules and orders promulgated under Subsection (a) of this
21-10 section wilfully fails or refuses to comply within the 30-day
21-11 period following the date of the commission's order to do so or if
21-12 a person wilfully fails to comply with any rule or other order
21-13 issued by the commission under this section within the 30-day
21-14 period following the effective date of the order, the person is
21-15 liable to a penalty of not more than $25,000 a day for each day the
21-16 person continues to violate this section. The state may recover
21-17 the penalty by suit brought for that purpose in the district court
21-18 of Travis County.
21-19 (d) The commission may issue an emergency order under
21-20 Subchapter K, Chapter 5 of this code.
21-21 (e) Nothing in this section or in rules or orders made by
21-22 the commission shall be construed to relieve an owner or operator
21-23 of a levee of the legal duties, obligations, or liabilities
21-24 incident to ownership or operation.
21-25 SECTION 7. Section 26.0191, Water Code, is amended to read
22-1 as follows:
22-2 Sec. 26.0191. TEMPORARY AND EMERGENCY ORDERS AND
22-3 AUTHORIZATIONS TO DISCHARGE UNTREATED OR PARTIALLY TREATED
22-4 WASTEWATER. [(a)] The commission may issue temporary or emergency
22-5 orders relating to the discharge of waste or pollutants under
22-6 Subchapter K, Chapter 5 of this code [when this is necessary to
22-7 enable action to be taken more expeditiously than is otherwise
22-8 provided by this chapter to effectuate the policy and purposes of
22-9 this chapter.]
22-10 [(b) A person desiring to obtain a temporary or emergency
22-11 order to discharge waste or pollutants, including untreated or
22-12 partially treated wastewater, into or adjacent to water in this
22-13 state shall submit a sworn application to the commission containing
22-14 the following information and any other information the commission
22-15 requires:]
22-16 [(1) a statement that the discharge is unavoidable to
22-17 prevent loss of life, serious injury, severe property damage, or
22-18 severe economic loss, or to make necessary and unforeseen repairs
22-19 to a facility, that there are no feasible alternatives to the
22-20 proposed discharge, and that the discharge will not cause
22-21 significant hazard to human life and health, unreasonable damage to
22-22 property of persons other than the applicant, or unreasonable
22-23 economic loss to persons other than the applicant;]
22-24 [(2) a statement that the proposed discharge will not
22-25 present a significant hazard to the uses that may be made of the
23-1 receiving water after the discharge;]
23-2 [(3) an estimate of the dates on which the proposed
23-3 discharge will begin and end;]
23-4 [(4) a statement of the volume and quality of the
23-5 proposed discharge;]
23-6 [(5) an explanation of measures proposed to minimize
23-7 the volume and duration of the discharge; and]
23-8 [(6) an explanation of measures proposed to maximize
23-9 the waste treatment efficiency of units not taken out of service or
23-10 facilities provided for interim use.]
23-11 [(c) The commission may issue emergency orders relating to
23-12 the discharge of waste or pollutants without notice and hearing, or
23-13 with such notice and hearing as the commission considers
23-14 practicable under the circumstances, only if the commission finds
23-15 the applicant's statement made under Subsection (b)(1) of this
23-16 section to be correct.]
23-17 [(d) If the commission issues an emergency order under this
23-18 authority without a hearing, the order shall fix a time and place
23-19 for a hearing to be held before the commission, which shall be held
23-20 as soon after the emergency order is issued as is practicable.]
23-21 [(e) At the hearing, the commission shall affirm, modify, or
23-22 set aside the emergency order. Any hearing on an emergency order
23-23 shall be conducted in accordance with Chapter 2001, Government
23-24 Code, or the rules of the commission. Any set of commission rules
23-25 concerning a hearing on an emergency order must include provisions
24-1 for presentation of evidence by the applicant under oath,
24-2 presentation of rebuttal evidence, and cross-examination of
24-3 witnesses.]
24-4 [(f) If emergency conditions exist which make it necessary
24-5 to take action more expeditiously than is otherwise provided by
24-6 this section, the executive director may authorize the discharge of
24-7 untreated or partially treated wastewater from a permitted facility
24-8 into or adjacent to water in the state if he determines that the
24-9 discharge is unavoidable to prevent loss of life, serious injury,
24-10 severe property damage, or severe economic loss, or to make
24-11 necessary and unforeseen repairs to the facility, that there are no
24-12 feasible alternatives to the discharge, and that the discharge will
24-13 not cause significant hazard to human life and health, unreasonable
24-14 damage to property of persons other than the applicant, or
24-15 unreasonable economic loss to persons other than the applicant. If
24-16 the executive director issues an authorization to discharge under
24-17 this authority, the commission shall hold a hearing as provided for
24-18 in Subsection (d) of this section as soon as practicable but in no
24-19 event later than 10 days after issuance of the authorization to
24-20 affirm, modify or set aside the authorization. The requirements of
24-21 Subsection (b) of this section shall be satisfied by the applicant
24-22 on or before such hearing date.]
24-23 [(g) The requirements of Section 26.022 of this code
24-24 relating to the time for notice, newspaper notice, and method of
24-25 giving a person notice do not apply to a hearing held on an
25-1 emergency permit under this section, but such general notice of the
25-2 hearing shall be given as the commission, under Subsections (c) and
25-3 (e) of this section, considers practicable under the circumstances.]
25-4 [(h) Temporary orders other than emergency orders require a
25-5 hearing before issuance of the order. The commission shall give
25-6 notice not less than 20 days before the date set for the hearing].
25-7 SECTION 8. Subsection (a), Section 26.021, Water Code, is
25-8 amended to read as follows:
25-9 (a) The [Except for those hearings required to be held
25-10 before the commission under Section 26.0191(b) of this code, the]
25-11 commission may authorize the chief administrative law judge of the
25-12 State Office of Administrative Hearings to call and hold hearings
25-13 on any subject on which the commission may hold a hearing.
25-14 SECTION 9. Subsection (a), Section 26.022, Water Code, is
25-15 amended to read as follows:
25-16 (a) Except as otherwise provided in Sections 5.401, 5.408,
25-17 [26.0191] and 26.176 of this code, the provisions of this section
25-18 apply to all hearings conducted in compliance with this chapter.
25-19 SECTION 10. Section 26.354, Water Code, is amended to read
25-20 as follows:
25-21 Sec. 26.354. EMERGENCY ORDERS. The commission [(a)
25-22 Notwithstanding any other provision of this chapter, the executive
25-23 director] may issue an emergency order [orders] to owners or
25-24 operators of [the persons identified in Subsection (e) of this
25-25 section if it appears that:]
26-1 [(1) there is an actual or threatened release of a
26-2 regulated substance from an] underground or aboveground storage
26-3 tanks under Subchapter K, Chapter 5 of this code [tank; and]
26-4 [(2) the executive director determines that more
26-5 expeditious corrective action than is otherwise provided for under
26-6 this chapter is necessary to protect the public health and safety
26-7 or the environment from harm.]
26-8 [(b) An order issued under Subsection (a) of this section
26-9 may prohibit a person from allowing or continuing the release or
26-10 threatened release and require the person to take the actions
26-11 necessary to eliminate the release or threatened release.]
26-12 [(c) An emergency order issued under this section shall be:]
26-13 [(1) mailed by certified mail, return receipt
26-14 requested, to each person identified in the order;]
26-15 [(2) hand delivered to each person identified in the
26-16 order; or]
26-17 [(3) on failure of service by certified mail or hand
26-18 delivery, served by publication one time in the Texas Register and
26-19 one time in a newspaper with general circulation in each county in
26-20 which any of the persons had a last known address.]
26-21 [(d) An emergency order issued under this section does not
26-22 require notice or an adjudicative hearing before its issuance. If
26-23 the executive director issues an order under this section, the
26-24 commission shall fix a time and place for a hearing to affirm,
26-25 modify, or set aside the emergency order issued by the executive
27-1 director. The hearing before the commission shall be held as soon
27-2 as practicable after the issuance of the emergency order.]
27-3 [(e) The executive director may issue orders under this
27-4 section to the following persons:]
27-5 [(1) the owner of an underground or aboveground
27-6 storage tank; or]
27-7 [(2) the operator of an underground or aboveground
27-8 storage tank].
27-9 SECTION 11. Section 361.274, Health and Safety Code, is
27-10 amended to read as follows:
27-11 Sec. 361.274. NO PRIOR NOTICE CONCERNING ADMINISTRATIVE
27-12 ORDER. An administrative order under Section 361.272 does not
27-13 require prior notice or an adjudicative hearing before the
27-14 commission. An emergency administrative order may be issued under
27-15 Subchapter K, Chapter 5, Water Code.
27-16 SECTION 12. Section 361.301, Health and Safety Code, is
27-17 amended to read as follows:
27-18 Sec. 361.301. EMERGENCY ORDER. [(a)] The commission may
27-19 issue an emergency mandatory or prohibitory order concerning an
27-20 activity of solid waste management under its jurisdiction as
27-21 provided by Subchapter K, Chapter 5, Water Code, even if the
27-22 activity is not covered by a permit[, if the commission determines
27-23 that an emergency requiring immediate action to protect the public
27-24 health and safety or the environment exists.]
27-25 [(b) The order may be issued without notice and hearing or
28-1 with notice and hearing the commission considers practicable under
28-2 the circumstances.]
28-3 [(c) If an emergency order is issued under this section
28-4 without a hearing, the commission shall set a time and place for a
28-5 hearing to be held in accordance with the rules of the commission
28-6 to affirm, modify, or set aside the emergency order.]
28-7 [(d) The requirements of Section 361.088 concerning public
28-8 notice do not apply to the hearing, but general notice of the
28-9 hearing shall be given in accordance with the rules of the
28-10 commission].
28-11 SECTION 13. Section 366.016, Health & Safety Code, is
28-12 amended to read as follows:
28-13 Sec. 366.016. EMERGENCY ORDERS. [(a) If the] The commission
28-14 or authorized agent may issue emergency orders under Subchapter K,
28-15 Chapter 5 of this code. [determines that an emergency exists and
28-16 that the public health and safety is endangered because of the
28-17 operation of an on-site sewage disposal system that does not comply
28-18 with this chapter or a rule adopted under this chapter, the
28-19 commission or authorized agent by order may:]
28-20 [(1) suspend the registration of the installer;]
28-21 [(2) regulate the on-site sewage disposal system; or]
28-22 [(3) both suspend the registration and regulate the
28-23 system.]
28-24 [(b) The order may be issued without notice and hearing.]
28-25 [(c) If the emergency order is issued without a hearing, the
29-1 commission or authorized agent shall set a time and place for a
29-2 hearing to affirm, modify, or set aside the emergency order to be
29-3 held not later than the 30th day after the date on which the
29-4 emergency order is issued.]
29-5 [(d) General notice of the hearing shall be given in
29-6 accordance with the laws of this state and rules adopted by the
29-7 commission or authorized agent.]
29-8 [(e) The hearing shall be conducted in accordance with the
29-9 commission's rules or laws and rules governing the authorized
29-10 agent.]
29-11 SECTION 14. Section 382.026, Health and Safety Code, is
29-12 amended to read as follows:
29-13 Sec. 382.026. ORDERS ISSUED UNDER EMERGENCIES. The
29-14 commission may issue an order under an air emergency as provided by
29-15 Subchapter K, Chapter 5, Water Code [(a) When it appears to the
29-16 commission or the executive director that there exists a
29-17 generalized condition of air pollution that creates an emergency
29-18 requiring immediate action to protect human health or safety, the
29-19 commission or the executive director shall, with the governor's
29-20 concurrence, order any person causing or contributing to the air
29-21 pollution immediately to reduce or discontinue the emission of air
29-22 contaminants.]
29-23 [(b) If the commission or the executive director finds that
29-24 emissions from one or more sources are causing imminent danger to
29-25 human health or safety, but that there is not a generalized
30-1 condition of air pollution under Subsection (a), the commission or
30-2 the executive director may order the persons responsible for the
30-3 emissions immediately to reduce or discontinue the emissions.]
30-4 [(c) An order issued under this section must set a time and
30-5 place of a hearing to be held before the commission as soon after
30-6 the order is issued as practicable.]
30-7 [(d) Section 382.031, relating to notice of a hearing, does
30-8 not apply to a hearing under this section, but a general notice of
30-9 the hearing shall be given that is, in the judgment of the
30-10 commission or the executive director, practicable under the
30-11 circumstances. The commission shall affirm, modify, or set aside
30-12 the order not later than 24 hours after the hearing begins and
30-13 without adjournment of the hearing.]
30-14 [(e) This section does not limit any power that the governor
30-15 or other officer may have to declare an emergency and to act on the
30-16 basis of that declaration if the power is conferred by law or
30-17 inheres in the office].
30-18 SECTION 15. Subsection (b), Section 382.030, Health and
30-19 Safety Code, is amended to read as follows:
30-20 (b) Except for hearings required to be held before the
30-21 commission under Sections 5.401(e) and (f) and 5.412, Water Code
30-22 [Section 382.026], the commission may authorize the executive
30-23 director to:
30-24 (1) call and hold a hearing on any subject on which
30-25 the commission may hold a hearing; and
31-1 (2) delegate the authority to hold any hearing called
31-2 by the executive director to one or more commission employees.
31-3 SECTION 16. Subsection (e), Section 382.031, Health and
31-4 Safety Code, is amended to read as follows:
31-5 (e) This section applies to all hearings held under this
31-6 chapter except as otherwise specified by Section 382.017[, 382.026,
31-7 or 382.063].
31-8 SECTION 17. Section 382.063, Health and Safety Code, is
31-9 amended to read as follows:
31-10 Sec. 382.063. ISSUANCE OF EMERGENCY ORDER BECAUSE OF
31-11 CATASTROPHE. [(a)] The commission may issue an emergency order
31-12 because of catastrophe under Subchapter K, Chapter 5, Water Code
31-13 [or the executive director, on delegation of authority from the
31-14 commission, by emergency order may authorize immediate action for
31-15 the addition, replacement, or repair of facilities or control
31-16 equipment necessitated by a catastrophe occurring in this state,
31-17 and the emission of air contaminants during the addition,
31-18 replacement, or repair of those facilities, if the actions and
31-19 emissions are otherwise precluded under this chapter.]
31-20 [(b) An order issued under this section must:]
31-21 [(1) be limited to a reasonable time specified by the
31-22 order;]
31-23 [(2) authorize action only on:]
31-24 [(A) property on which the catastrophe occurred;
31-25 or]
32-1 [(B) other property that is owned by the owner
32-2 or operator of the damaged facility and that produces the same
32-3 intermediates, products, or by-products; and]
32-4 [(3) contain a schedule for submission of a complete
32-5 application under Section 382.051.]
32-6 [(c) Under Subsection (b)(2)(B), the person applying for an
32-7 emergency order must demonstrate that there will be no more than a
32-8 de minimis increase in the predicted concentration of the air
32-9 contaminants at or beyond the property line of the other property.
32-10 The commission shall review and act on an application submitted as
32-11 provided by Subsection (b)(3) without regard to construction
32-12 activity under an order under this section.]
32-13 [(d) To receive an emergency order under this section, a
32-14 person must submit a sworn application to the commission or
32-15 executive director. The application must contain any information
32-16 the commission requires and:]
32-17 [(1) a description of the catastrophe;]
32-18 [(2) a statement that:]
32-19 [(A) the construction and emissions are
32-20 essential to prevent loss of life, serious injury, severe property
32-21 damage, or severe economic loss not attributable to the applicant's
32-22 actions and are necessary for the addition, replacement, or repair
32-23 of a facility or control equipment necessitated by the catastrophe;]
32-24 [(B) there are no practicable alternatives to
32-25 the proposed construction and emissions; and]
33-1 [(C) the emissions will not cause or contribute
33-2 to air pollution;]
33-3 [(3) an estimate of the dates on which the proposed
33-4 construction or emissions, or both, will begin and end;]
33-5 [(4) an estimate of the date on which the facility
33-6 will begin operation; and]
33-7 [(5) a description of the quantity and type of air
33-8 contaminants proposed to be emitted.]
33-9 [(e) The commission or executive director may issue an
33-10 emergency order under this section after providing the notice and
33-11 opportunity for hearing that the commission or executive director
33-12 considers practicable under the circumstances. If the commission
33-13 requires notice and hearing before issuing the order, it shall give
33-14 notice not later than the 10th day before the date set for the
33-15 hearing.]
33-16 [(f) Notice of the issuance of an emergency order shall be
33-17 provided in accordance with commission rules.]
33-18 [(g) If the commission or executive director issues an
33-19 emergency order under this section without a hearing, the order
33-20 shall set a time and place for a hearing to be held before the
33-21 commission or its designee as soon after the emergency order is
33-22 issued as practicable.]
33-23 [(h) Section 382.031, relating to notice of a hearing, does
33-24 not apply to a hearing on an emergency order, but such general
33-25 notice of the hearing shall be given that in the judgment of the
34-1 commission or the executive director is practicable under the
34-2 circumstances.]
34-3 [(I) At or following the hearing, the commission shall
34-4 affirm, modify, or set aside the emergency order. A hearing on an
34-5 emergency order shall be conducted in accordance with Chapter 2001,
34-6 Government Code and commission rules.]
34-7 [(j) In this section, "catastrophe" means an unforeseen
34-8 event, including an act of God, an act of war, severe weather,
34-9 explosions, fire, or similar occurrences beyond the reasonable
34-10 control of the operator that makes a facility or its functionally
34-11 related appurtenances inoperable].
34-12 SECTION 18. Section 401.056, Health and Safety Code, is
34-13 amended by adding Subsection (g) to read as follows:
34-14 (g) The commission may delegate its authority under this
34-15 section to its executive director by order or rule.
34-16 SECTION 19. Section 401.270, Health and Safety Code, is
34-17 amended to read as follows:
34-18 Sec. 401.270. CORRECTIVE ACTION AND MEASURES. (a) If the
34-19 commission finds that by-product material or the operation by which
34-20 that by-product material is derived threatens the public health and
34-21 safety or the environment, the commission by order may require any
34-22 action, including a corrective measure, that is necessary to
34-23 correct or remove the threat.
34-24 (b) [The commission may issue an emergency order to a person
34-25 responsible for an activity, including a past activity, concerning
35-1 the recovery or processing of source material or the disposal of
35-2 by-product material if it appears that there is an actual or
35-3 threatened release of source material or by-product material that
35-4 presents an imminent and substantial danger to the public health
35-5 and safety or the environment, regardless of whether the activity
35-6 was lawful at the time. The emergency order may be issued without
35-7 notice or hearing.]
35-8 [(c) An emergency order may be issued under Subsection (b)
35-9 to:]
35-10 [(1) restrain the person from allowing or continuing
35-11 the release or threatened release; and]
35-12 [(2) require the person to take any action necessary
35-13 to provide and implement an environmentally sound remedial action
35-14 plan designed to eliminate the release or threatened release.]
35-15 [(d) An emergency order issued under Subsection (b) shall:]
35-16 [(1) be delivered to the person identified by the
35-17 order by certified mail, return receipt requested;]
35-18 [(2) be delivered by hand delivery to the person
35-19 identified by the order; or]
35-20 [(3) on failure of delivery of the order by certified
35-21 mail or hand delivery, be served on the person by publication:]
35-22 [(A) once in the Texas Register; and]
35-23 [(B) once in a newspaper of general circulation
35-24 in each county in which was located the last known address of a
35-25 person identified by the order.]
36-1 [(e)] The commission shall use the security provided by the
36-2 license holder to pay the costs of actions that are taken or that
36-3 are to be taken under this section. The commission shall send to
36-4 the comptroller a copy of its order together with necessary written
36-5 requests authorizing the comptroller to:
36-6 (1) enforce security supplied by the licensee;
36-7 (2) convert an amount of security into cash, as
36-8 necessary; and
36-9 (3) disburse from the security in the fund the amount
36-10 necessary to pay the costs.
36-11 (c) The commission may issue an emergency order under this
36-12 section as provided by Subchapter K, Chapter 5, Water Code [(f) If
36-13 the order issued by the commission pursuant to this section is
36-14 adopted without notice or hearing, the order shall set a time, at
36-15 least 10 but not more than 30 days following the date of issuance
36-16 of the emergency order, and a place for a hearing to be held in
36-17 accordance with the rules of the commission. As a result of this
36-18 hearing, the commission shall decide whether to affirm, modify, or
36-19 set aside the emergency order. All provisions of the emergency
36-20 order shall remain in force and effect during the pendency of the
36-21 hearing, unless otherwise altered by the commission].
36-22 SECTION 20. Sections 11.139, 11.148, and 13.4133, Water
36-23 Code, are repealed.
36-24 SECTION 21. This Act takes effect September 1, 1997.
36-25 SECTION 22. The importance of this legislation and the
37-1 crowded condition of the calendars in both houses create an
37-2 emergency and an imperative public necessity that the
37-3 constitutional rule requiring bills to be read on three several
37-4 days in each house be suspended, and this rule is hereby suspended.